I spoke to a reporter at the end of last week about the criminal prosecution of scientific fraud. I’m not sure how coherent my end of the conversation was at the time, but I thought the topic was interesting enough to return to it briefly here.
Let’s put aside potential investigations and prosecutions by the federal Office of Research Integrity (part of DHHS). Granted, the ORI has claimed an extraordinarily broad mandate (funded and unfunded applications!), which might be worth returning to one day. But on the whole, such cases seem to me to be a fairly mundane application of the general contract fraud principles.
Instead, I’ll concentrate on a free-floating action in fraud against a scientific investigator for having misled potential patients. Thus, consider the scenario of a doctor faking an experiment to show that Drug X prevents heart attacks and has no side effects, when, in fact, it has no preventative powers, and it causes immediate hair loss. Is that doctor criminally liable? Civilly?
I’d guess that to the extent that general fraud often requires an intent-to-induce element, most scientists would be able to successfully assert that they did not intend for patients to rely on their work. In the civil context, I also assume that a consumer’s action would fail on the “justifiable reliance” end. If this weren’t true, I imagine that most scientific papers would end with a disclaimer that they are not intended to be relied upon, and that patients ought to consult their physicians (etc.)
But let’s put aside the doctrine for a moment and consider the policy arguments for attacking scientific fraud with prosecution. There are at least two reasons to think this is a bad idea (again, apart from the government-contract fraud case).